Even though he left it until the last minute we thanked him for coming forward even at that late stage with the Bill. However, this meant that the debate on that occasion was very limited and very little time was given to discussing the merits and de-merits of aspects of the Bill which were causing concern to Members on all sides of the House. On that occasion I asked the Minister if he would consider the points being made and come forward at a later stage with proposals to deal with the difficulties which tenants were facing whose cases had already been brought before the District Court but had not been heard. Since that debate in July nothing has been heard from the Minister for the Environment in regard to these cases. It falls to Fianna Fáil to bring forward, in the form of this Private Members' Bill, proposals to deal with the situation of tenants whose cases are before the courts and who do not derive any benefit from the establishment of the new tribunals.
The purpose of this legislation, therefore, is to amend the Housing (Private Rented Dwellings) (Amendment) Act, 1983, in relation to the applications made to the court before 2 August 1983 but, so far, unheard. The present situation, under section 10 of this Act, is that the applicant, usually the landlord, may withdraw the application and make a new application to the tribunal if the other party consents. The purpose of this Bill is to change that, so that either party, most likely the tenant, without the consent of the other party, can apply to the tribunal despite the fact that the matter has already been referred to the courts. In other words, this Bill will enable tenants to have any application to the District Court made before 2 August 1983 withdrawn and a new application to fix the rent or premises under the 1982 Act, as amended, to be heard by the tribunal established by the 1983 Act. In effect, the proposal will apply equally to landlords and tenants, but in reality, most applications have been made by landlords. The proposed amendment contained in this Bill will also obviate the necessity for both parties to consent to the applications being made. The Bill will ensure uniformity of rents by having as many as possible dealt with by the tribunal or the housing authority and will further ensure that as many cases as possible are heard in the informal setting of the tribunal, rather than before a court which strikes fear into the hearts of many elderly persons.
The proposals in the Bill will not deprive a landlord of the opportunity of having his rent fixed but it will ensure that the rent will be fixed by a more appropriate body, namely the tribunal. As the House knows, Fianna Fáil at all times favoured the establishment of a tribunal and supported the Minister when he introduced the Bill in July last which established the tribunals. The proposal now contained in this short Bill reflects Fianna Fáil's commitment to the tribunals already established and the need for informal procedures to apply to the fixing of rents. The tribunals have many powers to ensure that fair rents are fixed which do not apply to the District Court, such as the power to engage consultants. In these circumstances, it is clear that all Members should support this Bill which represents a positive commitment to the need to ensure that fair rents are applied by the tribunal.
When the Bill establishing the tribunal was being debated in this House on 7 July 1983 the Minister of State at the Department of the Environment, Deputy Quinn, highlighted the advantages in having their cases heard before the tribunal rather than the courts. In Volume 344, column 2515, of the Official Report he stated:
.... the persons coming before District Justices were often unaware of their rights, not properly represented, scared and anxious about the procedures used and of the threat to their homes. The courts did the best they could in these difficult circumstances but there was no way in which they could change the formal and adversary nature of the proceedings which, as every Deputy knows, was of such concern to the often elderly persons who had to appear before them. It is my belief that the proposals contained in the Bill will overcome many of the problems for landlords and tenants coming before the courts and that the structures set up will provide a more suitable forum for the determination of the rents of the dwellings in question.
He goes on to give further examples of the desirability of putting an end once and for all to rent increase applications being heard in the District Court environment which, as everybody in that debate and in previous contributions in this House have emphasised and agreed, is most unsuitable and undesirable, particularly taking into account the age of the majority of the people involved.
A large number of the people who resided in formerly rent controlled dwellings have, in fact, up to now been denied the opportunity of having their cases heard before the tribunal which this House established. Everyone who was here on the occasion of that debate will agree that it was clearly the wish of all sides of the House that the tribunals be established as quickly as possible. When the original Housing (Private Rented Dwellings) Act, 1982, was being debated it was understood that all sides wished to have the tribunals established as quickly as possible. It was understood that that legislation was only the immediate response of the Government of the day to a difficult situation that had arisen following a Supreme Court decision and that the District Court was to be used only in the short term in this context. It was understood by all sides that it never was the intention that any substantial number of cases would fall to be heard before the District Court. The intervention of the General Election in 1982 obviously had a part to play in causing a delay in the Government bringing forward legislation to establish the tribunals. Then, there was a delay in the formation of a new Government and unfortunately the new Government delayed until July when they responded to pressure from Fianna Fáil and finally brought in a Bill. However, the legislation that was brought in then is of little benefit to a very substantial number of tenants. In bringing forward this Bill today we are expressing our concern for those tenants and we are indicating a way in which they can be taken out of their predicament. Our Bill would simply enable either the tenant or the landlord to transfer a case from the District Court to the tribunal if either party so wished.
The Minister has tabled an amendment to our Bill. That amendment reads that:
... Dáil Éireann declines to give a Second Reading to the Bill:
(a) because the Bill would have the effect of removing a right of application to the Courts subsisting at the time of the making of the application and would consequently be in serious risk of being found repugnant to the Constitution, and
(b) because its main provision would have the effect of permitting the respondent to an application to the District Court to withdraw the application against the wishes of the person making the application.
The Minister is opposing the Bill on the grounds that there is a possibility of its being repugnant to the Constitution and also because he is of the opinion that it would have the effect of permitting the respondent to have an application to the courts withdrawn against the wishes of the person making the application. We had contributions in that vein from the Minister of State at the Department of the Environment when this matter was being debated in July last but I do not accept that the reasons given by the Government side are the end of the story. In July last we stated that in our opinion the matter had not been given adequate consideration and that we would not accept that it should be left at that without any action being taken. We said we did not accept that the legal advice being given to the Government on the matter was necessarily the correct advice. We have substantial legal opinion available to us which indicates that the Minister's stand may not be correct. However, I shall return to that at a later stage.
In the interest of the tenants who have been affected so badly up to now, it is incumbent on Fianna Fáil to highlight this difficulty, to bring the question back to the floor of the House and in that way to put as much pressure as possible on the Government to take the necessary steps to ensure that all of these tenants will benefit from the newer situation and have their cases removed from the court.
When the Minister of State, Deputy Quinn, was speaking on this matter on the other occasion he said, as reported at column 2517 of the Official Report for July 7, 1983:
The Bill proposes that, where a person has applied to the District Court to have his case determined and the case has not been determined at the time of the commencement of the Act, he or she should have the right to withdraw the case, with the consent of the other party, and transfer it for hearing before the tribunal. Consideration was given to providing for the automatic transfer of such cases to the tribunal and we wanted to do so, but we have been advised by the Attorney General that such action would be unconstitutional. Similarly, the tribunal could not be given the power to review cases already heard by the District Court except in so far as the cases come up for review in the normal fashion after the five year period had elapsed.
We can see clearly that on July 7 the Minister informed the House that the Attorney General's advice to the Government was that the moves as proposed, and as proposed again in this Bill, would be unconstitutional. But in the amendment which the Minister is putting before the House today he does not seem to be so positive about the constitutionality or otherwise of what we are proposing. The words used now are that there could be a serious risk of the provisions being declared repugnant to the Constitution. In other words, there is a new doubt so far as the Government are concerned, a doubt that did not exist when the matter was being discussed in July last. Consequently the Minister's adamant statement to the House that he had received advice from the Attorney General to the effect that giving either party the right to have his case transferred would be deemed unconstitutional has now been changed to the wording that there would be a serious risk that it might be deemed unconstitutional. Already, then, there is a difference in the opinion of the Government side.
Only last week we had a Bill before the Dáil which proposed providing for the granting of voting rights to British citizens living here. Initially, the Minister of State informed the Dáil that the legal advice was that that Bill would be constitutional but when the debate was coming to a conclusion he agreed with the strong view from Fianna Fáil that there was a possibility that the Bill might be considered to be unconstitutional. There was unanimity on both sides here with the suggestion that the President refer the Bill to the Supreme Court. That is the only way in which a final determination of constitutionality can be made.
In anticipation of the Minister for the Environment inquiring as to why we have decided to bring forward this Bill at this time, I would remind him that we have given the Government a reasonable length of time — since July last — but that we have not had any response to the appeal I made then when I urged the Minister to proceed immediately with the establishment of the tribunals so that the majority of the people concerned might have their cases heard. I urged the Minister also then to take heed of what has been said during the debate and to go back to the Attorney General and seek further legal advice with a view to ascertaining whether what the House was asking might be done. I urged the Minister to do what he could to help. I concluded by saying that we did not wish to do anything that would prevent the Bill becoming law but that we accepted that there was a flaw in it. We still believe that that flaw is there and we have the sorry spectacle of many people waiting to have their cases heard before the District Court, cases which make very sad reading.
I will not go into the mechanics of the decision making of judges in relation to the levels of new rents. That is a more complicated area. I am concerned about the continuation of the hearing of these cases before the District Court. It is incumbent on the Minister to take steps along the lines we are proposing which we claim are not unconstitutional. In making that assertion I appeal to the Minister to accept the Bill — it is very short and consists only of one pertinent section — and let the House pass the Bill and let this question of constitutionality be determined by the appropriate authority, the Supreme Court. I have no doubt that the President would respond to the wishes expressed in Dáil debates and would also respond to appeals which had been made to him by private tenants' action groups in this city. I have here a copy of a letter addressed to the President and dated 21 October 1983 in which a similar request regarding the whole operation of this Act was made by the Donore branch of the Private Tenants' Action Group calling on the President to intervene in view of the fact that there was no response from the Government. If you will allow me, Sir, I will insert a small paragraph from this letter in the record. The letter is signed by Mrs. Sarah Murphy and Mrs. May Hoare. I quote:
Our question, Mr. President, is this ... when a Bill of this kind is enacted — who is appointed to see that it is carried out in the manner envisaged by the legislators? In a Dáil Adjournment Debate on 24 March last, Mr. Ruairí Quinn, T.D. stated that he was aware that perhaps Section 13 of the Act was not being interpreted by the Courts in the way that the legislators wanted it to be interpreted. He further stated that "he would hope that the Courts in the general manner would take note of what we have said today and of what has been said during the passage of the Bill last July so that the proper relationship between what the legislators want, on the one hand, and what the courts have to administer, on the other, is clearly seen and that our intentions are clearly seen. He would take the representations that have been made and bring them to the notice of the Minister for Justice to enable him to handle it in the manner that is appropriate for his jurisdiction.
These people offered the comment:
The very idea of hoping that the courts would take note of what was said re the Bill is utterly ridiculous — when the living standards of so many tenants lay with the proper interpretation of the Bill.
The whole solution to this problem is to get these cases out of the District Court and into the new tribunal situation where, it is to be hoped, all the relevant factors could be more appropriately and properly considered.
We are appealing to the Minister today to accept our Bill and allow the President to refer it to the Supreme Court. I quote an instance where only last week a similar suggestion was accepted by the Minister although he himself was bringing forward the Bill on that occasion. I do not think that the fact that this Bill is being introduced by an Opposition party should be a valid reason for the Government to reject it. We have a role to play here in legislation, albeit not as active a role as Government because of their special position, but this House allows the Opposition the opportunity to introduce Bills of this nature where it sees a serious need exists. In this case we believe that an emergency exists. Legal opinion which the Attorney General is giving the Government need not necessarily be the only legal opinion in this matter, and I suggest that the Minister seek further legal advice from a wider source.
Maybe the position is the Minister can claim that he is correct as the law stands, but let us accept the fact that this House is the only place where laws can be changed and new laws can be made. If the Deputies elected to Parliament are not going to take the initiative and change the laws to safeguard the rights of individual citizens, then there is obviously a very serious omission on the part of the Legislature, and we feel our responsibility rests in acting on behalf of those sections of our community who are not being dealt with fairly. There is no doubt in any-body's mind on either side of the House that the trauma experienced by tenants who have had to suffer the indignities of court hearings in these rents cases is a serious blight on our society today which requires urgent action. There have been moves by certain property companies to capitalise on the situation in anticipation of the Supreme Court decision, and advantage has been taken of elderly citizens in a large number of cases. Serious concern is being expressed at the activities of a company known as the Folio Company, I think, who, I understand, set about purchasing nearly 600 artisan dwellings in this city at a very low price, something around £1,200. They were of little value in view of the rent controls but they were acquired in anticipation of changes in the legislation. Now the tenants in these dwellings which were bought at such a low figure by this Folio Company are finding themselves brought before the District Court to have their rents increased by enormous amounts which is causing great distress to the tenants of these dwellings whose whole enjoyment of life has been sapped away. Anybody who has met with people caught in this situation cannot but have the utmost sympathy for them in the tragedy that has befallen them in their later years.
There is a serious obligation on all of us in this House to stand up, to speak for the weaker sections and to insist that Governments take appropriate actions. It is impossible for these poor people to understand that the TDs in the Dáil, where legislation is passed which has resulted in them finding themselves in such a serious plight, cannot take any action, or so they say. The Minister says he cannot take any action to save them from this difficult situation because the matter is unconstitutional. I tell the Minister that the laws are made here and the laws can be changed here. We appeal to him to act along the lines suggested in our Bill. If there is some other way better than the wording and method implied in the short Bill which Fianna Fáil are proposing here, we will readily welcome it and encourage the Minister to come forward with his own Bill to do what we are asking. If our wording is inadequate in some way, then we appeal to the Minister to come forward with his own Bill but to act on behalf of the people I have spoken of as quickly as possible.
On the whole question of constitutionality, I suspect that that is the only opposition, defence, comment or contribution that the Minister for the Environment is going to make in response to this Bill. I want to say first of all, that the tribunal which is under discussion here was established by the 1983 Act. It must be presumed, therefore, to be constitutional as the Act has been signed by the President and is a law of the land.
At present the parties may, on consent, withdraw the application from the court. That is the position under the 1983 Act. This Bill which we are proposing here merely allows either party to withdraw a case that has not come for hearing in the court and to transfer it to the tribunal. We claim this is not unconstitutional. First, the jurisdiction of the District Court is statutory, not constitutional. It may be added to or taken from by statute. Secondly, specific matters may be excluded from the District Court jurisdiction. For example, actions for libel or slander are so excluded. Thirdly, only the High Court and the Supreme Court have a constitutional jurisdiction unalterable by statute. I should like to refer the Minister to the Sinn Féin funds case in 1950 in the Irish Law Reports. This deals with constitutional jurisdiction. It does not apply to a jurisdiction which was conferred by statute and may be removed by statute. The Sinn Féin case also relates to matters in the purely judicial domain. The fixing of rents is not in such a domain. If it were, the 1983 Act brought in by this Government would be unconstitutional.
Fianna Fáil would not object if the Bill were referred to the Supreme Court by the President to test its constitutionality under Article 26 of the Constitution. This is the constitutional way to deal with the Minister's objection. I believe the Government's motion is an attempt to substitute their view on the Bill's constitutionality by stopping it ever getting to the courts. There is no bona fide doubt about this Bill. The Government are afraid to approach it on its merits because they want to back the landlords who are making exorbitant profits. They are afraid to be seen to do so and, therefore, they have invented this bogus technicality.
People suggest to me that some relatives of people in high places in the Government may have a vested interest in some of the dealings in regard to some of the cases that are being brought before the courts.
